DEPP VS HEARD PRE-TRIAL : ELEMENTS OF PRIVATE

INTERNATIONAL LAW

Tribhuvan University
Nepal Law Campus

Submitted By : Binita Bhandari

Roll no : 19 , Section A
Submitted to : Miss Prakriti Malla
Term Paper for the requirement of internal evaluation
Background
Depp vs Heard was an infamous case between Actor Johny Depp and his ex wife Amber Heard.
The facts of the case were that Johny Depp filed a defamation lawsuit against Heard in 2019,
seeking $50 million in damages over an op-ed she wrote for The Washington Post in December
2018. In the op-ed, Heard discussed her experience as a survivor of domestic abuse without
explicitly naming Depp. Nevertheless, Depp claimed that the article implied he was the
perpetrator, damaging his reputation and career.
However , despite both the parties being the resident of California , the suit was filed in the
Fairfax County court of Virginia State. Before moving to the trial Ms. Heard filed a motion to
dismiss the suit filed in Fairfax County claiming that it is a forum non convenience .Here the
private international law comes in picture .This paper will try to analyze the elements of private
international law in the pre- trial case of Depp Vs Amber.
Defendant’s Argument

1. The defamation didn’t occur in Virginia

During the pre trial the counsels from the defendants tried to argue that the Fairfax County
doesn’t have jurisdiction because :
▪ Both Mr Depp and Ms Amber are domiciled in California.
▪ Mr .Depp doesn’t own property in Virginia .
▪ Mr Depp does his majority of work as an actor in California .
▪ The professional harm caused due to the alleged defamation will mostly occur in
California .
The counsels also cited the case of Gilmore Vs Jones where the federal court decided that
in case of multistate mass media defamation case the place where the plaintiff is domiciled
is the place where the plaintiff suffers the great injury.
2. Virginia is forum non convenience
The counsels from the defendant’s side argued that the state of Virginia is not a convenient
forum for both the parties because the cause of action as well as the premises of action is not
located in the state of Virginia and Virginia will not be a convenient forum for witnesses to the
alleged defamation as well.
Plaintiff’s Argument
1. Cause of Action arose in Virginia
The State of Virginia apples the lex loci delicti rule to determine the place of tort .The Virginia
Court in the case of Cockrum vs Donald Trump has clarified that the place of publication is
determined by where the physical publication occurred. The counsels further argued that Ms
Heard submitted her op-ed to the Washington Post through her contact at the ACLU (
American Civil Liberties Union ) , which was then published in its online edition , created on
a digital platform in Virginia , routed through servers in Virginia and also printed and published
in a hard copy edition from Springfield , Virginia.
2. Ms Heard’s claim regarding forum non convenience is not satisfied
The plaintiff further argued that the claim that Ms heard has made saying that state of Virginia
is forum non convenience is not enough because the evidence has been already collected and
the parties have access to witnesses in either California or Virginia and in this case the access
to physical premises is unnecessary because demonstrative exhibits can be used .

The questions to be decided by the court :

Where did the cause of action arose ?
Is the claim of forum non convenience valid ?

Courts Verdict
1. Where did the cause of action arose ?
The Washington Post, where Amber Heard's op-ed was published, has strong ties to Virginia.
It's printed in Springfield, Virginia, and has digital operations based there too. The paper is
widely read in Virginia, and it even has a local edition specifically for Virginia readers.
Additionally, The Washington Post which published the op-ed has two physical offices in
Virginia.

2. Is the claim of forum non convenience valid ?

The Virginia Code section 8.01-262 allows the defendant to dismiss the action upon
determination that a more convenient forum exists outside Virginia but the party making such
motion has the burden to show that good cause exists to invoke the forum non convenience
doctrine and that good cause is that the defendant must prove that Virginia is not a place of
action but the defendant is unable to do so. Thus the doctrine of forum non convenience is not
invoked.
Analysis
Application of Minimum contact theory : While deciding the Virginia as a place of cause of
action the court has tried to apply the minimum contact theory because the mere presence of
servers of The Washington Post in Virginia despite having its main office in New York is taken
as an element to establish the Virginia as a place of cause of action.
Forum Shopping : Despite being domicile of California Mr. Depp chose Fairfax County to
file the suit of defamation against his ex wife raises the question on the prospective privileges
he would have by filing the case in Virginia. He had mostly two advantages : First , Virginia
has weak anti SLAPP ( Strategic Lawsuit Against Public Participation) laws i.e. lawsuit filed
against people for exercising their First Amendment rights. In fact, Virginia has been used in
the past by other public figures to file defamation claims in cases that would be rejected in
other jurisdictions, including by former Congressman Devin Nunes against Twitter, the New
York Times, and CNNs. Usually the trial would have taken place where the injury took place
i.e. California, where both parties live. However CA’s anti SLAPP laws would’ve immediately
took Depp’s case down.
Second , Virginia also has defamation by implication so his case was more actionable there.
To prevail in a defamation suit under Virginia law, a plaintiff need only establish the following:
1) the “publication” of
(2) an “actionable statement”
(3) made with the “requisite intent.

Note : Only the elements related to private international law is discussed in this paper. For the
full details of judgement please go through the link provided in the reference.
References :
https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/high-
profile/depp%20v%20heard/cl-2019-2911-transcript-attached-to-080819-order.pdf
https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/cl-
2019-2911-depp-v-heard.pdf